The
police identified the Internet Protocol (IP) address of a computer that someone
had been using to access and store child pornography through an Internet file
sharing program. They then obtained from the Internet Service Provider (ISP), without prior judicial authorization,
the subscriber information associated with that IP address. The request was purportedly
made pursuant to s. 7(3)(c.1)(ii) of the Personal Information
Protection and Electronic Documents Act (PIPEDA).This led
them to the accused. He had downloaded child pornography into a folder that
was accessible to other Internet users using the same file sharing program. He
was charged and convicted at trial of possession of child pornography and
acquitted on a charge of making it available. The Court of Appeal upheld the
conviction, however set aside the acquittal on the making available charge and
ordered a new trial.

Informational privacy is often equated with secrecy or confidentiality, and
also includes the related but wider notion of control over, access to and use
of information. However, particularly important in the context of Internet
usage is the understanding of privacy as anonymity. The identity of a person
linked to their use of the Internet must be recognized as giving rise to a
privacy interest beyond that inherent in the person’s name, address and
telephone number found in the subscriber information. Subscriber information,
by tending to link particular kinds of information to identifiable individuals
may implicate privacy interests relating to an individual’s identity as the
source, possessor or user of that information. Some degree of anonymity is a
feature of much Internet activity and depending on the totality of the
circumstances, anonymity may be the foundation of a privacy interest that
engages constitutional protection against unreasonable search and seizure.

The
police, however, were acting by what they reasonably thought were lawful means
to pursue an important law enforcement purpose. The nature of the police conduct in this case would not tend to bring the
administration of justice into disrepute. While the impact of the Charter‑infringing
conduct on the Charter protected interests of the accused weighs in
favour of excluding the evidence, the offences here are serious. Society has a
strong interest in the adjudication of the case and also in ensuring the
justice system remains above reproach in its treatment of those charged with
these serious offences. Balancing the three factors, the exclusion of the
evidence rather than its admission would bring the administration of justice
into disrepute. The admission of the evidence is therefore upheld.

Nevertheless, the Court suggests that there are other circumstances when Canadian anonymity rights may shield unlawful - even heinous - behavior from police search.